Opinion
A94A1145.
DECIDED SEPTEMBER 29, 1994. RECONSIDERATION DENIED DECEMBER 12, 1994.
Aggravated assault. Fulton Superior Court. Before Judge Long.
Megan C. De Vorsey, Ronald J. Scholar, for appellant.
Lewis R. Slaton, District Attorney, Jamie L. Mack, Vivian D. Hoard, Assistant District Attorneys, for appellee.
Defendant Carlos Brown appeals from his conviction for aggravated assault, OCGA § 16-5-21 (a) (2).
Viewed in a light most favorable to the verdict, the evidence showed that defendant was living at the home of his aunt and the victim, Willie Glass. Defendant's aunt and Glass were sitting on the front porch when defendant came home from work and went inside. Defendant came back out and walked behind the building. A few minutes later, defendant returned with a baseball bat shouting at Glass, "Where's my ______?" Defendant and Glass exchanged words and, as Glass was attempting to walk away, defendant hit him in the head with the bat.
Defendant testified that Glass pulled a knife on him as he was questioning Glass about $500 missing from his room and that he swung the bat at Glass in self-defense.
1. Defendant argues the trial court erred in refusing to allow him to impeach Glass with a certified copy of an indictment showing Glass' guilty plea to burglary. The trial court allowed defendant to impeach Glass with a certified copy of his conviction for involuntary manslaughter. However, when defendant also attempted to impeach Glass with a certified copy of his plea to burglary, the prosecutor objected on the ground that no sentencing sheet was attached to the certified copy of the indictment and plea. The trial court sustained the objection, finding a certified copy of the conviction or judgment was necessary.
We agree with defendant that the trial court erred in refusing to allow him to impeach Glass with a certified copy of the indictment showing Glass' guilty plea to burglary. Numerous cases of both this court and the Supreme Court have held that a certified copy of a witness' plea of guilty to a crime involving moral turpitude is a permissible method of impeachment. Hicks v. State, 169 Ga. App. 542 (1) ( 314 S.E.2d 113) (1984); see also Gardner v. State, 263 Ga. 197, 199 (5) ( 429 S.E.2d 657) (1993); Favors v. State, 234 Ga. 80, 87 (3) ( 214 S.E.2d 645) (1975); Woodward v. State, 197 Ga. 60, 70 (8) ( 28 S.E.2d 480) (1943); Sloan v. Glaze, 72 Ga. App. 415, 418 (4) ( 33 S.E.2d 846) (1945). However, in view of the fact that defendant was allowed to impeach Glass with his conviction for involuntary manslaughter and that, in any event, defendant's aunt corroborated entirely Glass' version of the events, we find it "highly probable that the error did not contribute to the judgment." Johnson v. State, 238 Ga. 59, 61 ( 230 S.E.2d 869) (1976).
2. In light of our holding in Division 1 above, we need not address defendant's argument that the trial court erred in denying his request for a continuance to allow him to obtain a certified copy of the sentencing sheet for Glass' burglary conviction.
3. In his last two enumerations, defendant argues the trial court erred in instructing the jury that each element of the crime must be "proven beyond a reasonable doubt and to a moral and reasonable certainty" and that "[m]oral and reasonable certainty is all that can be expected in a legal investigation." Specifically, defendant argues that these charges effectively reduced the State's burden of proof and denied him his due process rights. While the Georgia Supreme Court in Vance v. State, 262 Ga. 236 (2), 238 ( 416 S.E.2d 516) (1992), criticized a virtually identical charge to that given here, it held that "use of the words `moral and reasonable certainty' created no reversible error when `considered in the context of the charge as a whole.'" Furthermore, "[n]o Georgia court has determined that the charge given herein is constitutionally deficient so as to warrant reversal. [Cits.]" Davis v. State, 213 Ga. App. 113, 114 (1) ( 443 S.E.2d 638) (1994). We thus find this enumeration to be without merit.
Defendant next argues that the United States Supreme Court's decisions in Cage v. Louisiana, 498 U.S. 39 ( 111 SC 328, 112 L.Ed.2d 339) (1990), and Sullivan v. Louisiana, 508 U.S. ___ (113 SC 2078, 124 L.Ed.2d 182) (1993), require that we find the trial court's charge constituted reversible error. We previously addressed this argument in Davis and found it to be without merit. Specifically, we noted that the charge in Cage was distinguishable from the one given here and thus found the holding in Sullivan that the Cage charge cannot be harmless error to be inapplicable. Davis, 213 Ga. App. at 114; see also Ruff v. State, 212 Ga. App. 245, 246 (2) ( 441 S.E.2d 534) (1994).
Judgment affirmed. McMurray, P. J., and Smith, J., concur.